Top Five Tips When Seeking Leave to Appeal

In Ontario, there is no inherent right to appeal a decision. Appeal rights are “wholly a matter of statute”.[1]

In certain cases, permission or “leave” of the appeal Court will be required before the Court even entertains the prospect of hearing the appeal. 

In this way, the appellate Court exercises a gatekeeping function, ensuring the justice system operates efficiently, only the most important cases are heard, and parties do not bring frivolous appeals for improper reasons, such as seeking to delay the enforcement of a civil judgment.

The circumstances in which an appellate Court will grant leave to appeal are accordingly narrow. If the Legislature has chosen not to grant the parties an automatic right of appeal from a lower-Court or tribunal decision, appeal Courts may only entertain proposed appeals that entertain fundamental questions of law and have implications not only for the parties, but also for the public at large.

The most recent reform proposals for Ontario’s Rules of Civil Procedure[2] take these principles into account. They seek to streamline the leave-to-appeal process, requiring, among other things, that motions for leave to appeal do not delay the underlying litigation, and that the parties be required to “perfect” or deliver their materials on a motion for leave within a 15-day timeframe.

Until these reforms take effect, however, motions for leave to appeal remain a significant burden for both the moving and responding parties.

Below is a list of some of the most important considerations when seeking leave to appeal or responding to a motion for leave to appeal.

1. Is Leave to Appeal Required?

A governing statute or regulation may require that the party seeking to appeal obtain leave of the Court before the appeal is allowed.

Under Ontario’s Arbitration Act, for example, if the parties’ arbitration agreement does not deal with appeals on questions of law, a party can only appeal the arbitral award on a legal question with leave of the Court.[3]

Broadly speaking, in Ontario, most interlocutory orders in a matter require leave to appeal.[4] Final matters may also require leave as well, particularly where a party is seeking a further right of appeal from the Ontario Divisional Court to the Ontario Court of Appeal.[5]

The onus is on the potential appellant to determine if leave to appeal is required. A failure to obtain leave, where required, could result in the entire appeal being struck.

2. Is the Order “Final” or “Interlocutory”?

Generally, in Ontario, leave to appeal is required for non-final or “interlocutory” orders of the Ontario Superior Court.[6] This includes orders that do not finally dispose of the matter in question.[7] Orders relating to pleadings, service, and orders that do not finally dismiss an action may all be considered interlocutory.

Whether an order is final or interlocutory has resulted in significant confusion in case law, and the unexperienced lawyer or potential appellant should proceed with extreme caution. The matter is further complicated by lower-Court orders that have both final and interlocutory aspects.[8] 

The proposed upcoming reforms to the Rules of Civil Procedure will seek to clarify this confusion somewhat, by providing lists of what constitutes a final or interlocutory order.[9] Until such time, the question remains one of jurisprudence.

3. What is the Test for Leave to Appeal?

Once a party has determined that leave to appeal is necessary, understanding the correct test to obtain leave is key.

The legal tests for leave to appeal vary. 

Typically, on a motion for leave to appeal from an interlocutory order, the moving party seeking to appeal must show there are “conflicting decisions” on the matter involved in the proposed appeal and it is “desirable that leave to appeal be granted”. Alternatively, the moving party must show there is “good reason to doubt the correctness of the order in question” and that the proposed appeal involves matters of general importance.[10] Much judicial ink has been spilled on what these phrases mean in practice. 

Where a party is seeking leave to appeal from an Order of the Divisional Court to the Court of Appeal, the Court of Appeal will consider factors such as:

• Whether the Divisional Court was exercising appellate jurisdiction or sitting as a Court of original jurisdiction;
• Whether the appeal involves a statute or regulation, including any constitutional questions;
• Whether the proposed appeal involves some general rule or principle of law; and
• Whether the issue under appeal is of “general interest”.[11]

The common thread for these tests requires a legal question that is of interest not only to the parties, but to the Ontario public at large.

4. Is the Motion in Writing?

Most motions for leave to appeal are “heard” in writing, though the appeal Court may reserve the right to request oral submissions on the motion if necessary.[12] That said, oral submissions on a motion for leave are rare. The obligation is on the moving party to put its “best foot forward” in its written materials, or risk losing. 

The onus on the moving party is heightened by the fact that most appeal Courts do not render written reasons on a leave motion. So, the moving party will likely never find out why the panel who heard the written motion ruled the way it did in granting or denying leave to appeal. 

Further, most decisions on motions for leave to appeal are effectively unappealable.

5. Is a Stay of the Underlying Order Required?

In most cases, where leave to appeal is required, the underlying order is not stayed and is completely enforceable.[13] 

Parties who seek leave to appeal must consider the additional burden and expense of having to pursue a motion to stay the underlying order pending the resolution of the motion for leave.

Why Motions for Leave to Appeal Are Restricted

A motion for leave to appeal does not represent an effort by the Courts to add an additional burden and further expense and delay on the parties. 

To the contrary, where leave is required, the Courts and Legislature have signalled to the parties that they have had their day in Court and will intervene only if real questions of law and public importance are raised in the potential appeal.

The “leave” requirement plays an essential role in the administration of justice.

It ensures that only the most important legal issues are subject to sober second thought.

Marco P. Falco is an appellate / public law litigator in the Litigation and Dispute Resolution Group at Torkin Manes LLP in Toronto. You may contact Marco about your appeal at mfalco@torkin.com. Please note that a conflict search will need to be conducted before your matter can be discussed.